Reason’s Jacob Sullum on the Supreme Court’s upholding of preventive detention:
Opponents of preventive detention for convicts who have served their time argue that it violates the right to due process, the guarantee against double jeopardy, and the ban on ex post facto laws. Although a 1997 decision upholding a Kansas civil commitment law suggests the Supreme Court is not receptive to such arguments, this week’s ruling did not address them. Instead it dealt with the question of whether the federal government, as opposed to the states, has the authority to commit “sexually dangerous” prisoners who would otherwise be released.
The seven-justice majority concluded that it does, citing the Necessary and Proper Clause, which authorizes Congress “to make all laws which shall be necessary and proper for carrying into execution” its enumerated powers. The Court said the civil commitment law is justified by the criminal statutes under which federal prisoners are convicted, which are in turn justified by specific congressional powers.
One problem with this argument is that Congress has federalized a wide range of offenses, including many already addressed by state laws, based on thin or nonexistent constitutional pretexts. Three of the prisoners in this case, for example, were convicted of possessing child pornography, which is a federal offense when the material “has been mailed, or has been shipped or transported in interstate or foreign commerce, or…was produced using materials which have been mailed or so shipped or transported, by any means including by computer.” In other words: always.
The newly minted “hate crime” law likewise federalizes offenses based on absurdly attenuated links to interstate commerce. If a misogynist uses a knife manufactured in another state to rape a woman, that’s enough to make it a federal crime.
Even if we assume the validity of such laws, Justice Clarence Thomas notes in a dissent joined by Justice Antonin Scalia, civil commitment does not carry them into execution, as required by the Necessary and Proper Clause. The criminal statute has been fully executed at the point where someone convicted of violating it completes the sentence it prescribes, which is precisely when civil commitment takes effect.
Continued confinement, Thomas notes, “is aimed at protecting society from acts of sexual violence,” not at “‘carrying into execution’ any enumerated power.” That point is reinforced by the fact that one-fifth of the prisoners whom the government has identified as “sexually dangerous” were never convicted of a federal crime involving sexual violence. Even someone convicted of mail fraud or tax evasion could be put in this category.
Furthermore, Thomas writes, “the definition of a ‘sexually dangerous person’…does not require the court to find that the person is likely to violate a law executing an enumerated power in the future.” The commitment law therefore is only tenuously related to federal criminal statutes, which themselves may be only tenuously related to an enumerated power.
Thomas warns that the majority’s opinion, which requires no more than a “rational” connection between a federal law and an enumerated power, “comes perilously close to transforming the Necessary and Proper Clause” into a rationale for the general police power that the Constitution reserves to the states. “The Constitution does not vest in Congress the authority to protect society from every bad act that might befall it,” he writes. Unfortunately, this will be news to most members of Congress.
The fact of likely recidivism by sexual predators and certain kinds of sex offenders creates of those categories of offender something of a special problem for civil society: namely, when and how is preemptive action not only necessary, but seemingly ethical, as well. And so we shouldn’t diminish the impetus for the question simply as a matter of law: if we know of an imminent threat, we shouldn’t allow our laws to prevent us from dealing with that threat actively.
Having said that, law is designed not simply to protect society — but to protect the individual from society in certain instances. In fact, that’s what the idea of having a Constitution based in natural law is all about: protecting certain basic individual rights against the whims of ever-shifting public moods. Else we be treated to the spectacle of people texting in their “votes” for how a law should be “interpreted,” and calling the result a triumph of the “Living Constitution.”
As with the expansion in scope of the Commerce Clause, or the redefining of “public use” as “public good,” expanding the scope of the “Necessary and Proper Clause” — while it may have the salutatory short term effect of providing the rationale for a finessing of the law to match the will of the legislature and/or courts — will have the long term effect of broadening those clauses to the point where, because they apply to everything, the serve to constrain nothing.
Legal conservatism, as I’ve sometimes argued here, is often troubled by an excess of deference to precedent (stare decisis). So while legal conservatives on the bench will often prevent bad law from taking hold on the front end, they are also less likely to walk back bad law once that law has gained historical purchase.
To their credit, Justices Thomas and Scalia have, in this case, avoided the dual temptations of rationalizing the will of civil society into legality, and allowing the Constitution to take on an ethical dimension in this case that, when upheld (as it was by the majority) serves both to increase state power at the expense of fidelity to the particularities of the Constitution’s procedural dicta, and to diminish the check due process provides for the natural right to liberty.
The word “outlaw” has a different side that, while I’d rather not see it applied generally, might serve the public need better, in the case of sex offenders, than preventive detention. I speak of the traditional medieval usage of the word in England: that an “outlaw” is someone literally “outside the law.”
So, if a registered sex offender is caught by a private citizen in the act (or otherwise clearly guilty) of recidivising, said private citizen may do with him as he would a rabid skunk. Perhaps a coroner’s inquest-type of proceeding would be held to examine the evidence against the deceased before absolving the person that killed him, but that would be about it.
With recent decisions of the Court, you cannot execute a convicted felon for anything less than treason or murder, say…rape. Even rape of a child. You cannot execute a minor, regardless of the crime committed. You also cannot give a life sentance to a person who commits a murder or rape, if that person is a minor when they commit the act.
But if some administrative panel deems you dangerous, they can hold you indefinitely.
Scalia and Thomas get the hypocrisy of all of this. It is not Anthony Kennedy’s job to sort out this morality. It is lawmakers and the people who need to deal with this. The Court should be limiting itself to whether acts taken by Congress pass constitutional muster. That what we did fifty years ago did and what we do now does not, without any change in the Constitution, does not make sense.
McGehee,
I just don’t see the Government ever admitting that the people have the right or the ability to protect themselves from predators, whether sexual, financial, lupine, or otherwise. Far better that a thousand innocents are killed by paramilitary SWAT teams, than that a single innocent should die at the hands of an angry mob.
I’m inclined to agree with Justices Thomas and Scalia here. I understand the need to protect society from sexual predators, that may be walking a fine line between sanity and the alternative, as well as protect the individuals themselves. And, in the case of terrorist, whether foreign nationals or Americans by birth, for instance, I have no problem with preventive detention.
I just think that this is one of those “slippery slope” detours, that just as with the commerce clause, could be seen at some point later, through the necessary “emanations in penumbras” to appeal to other classes of felons that may not currently exist, nor may even pose any real danger to society ar large…
You know, like OUTLAW! bloggers that don’t tow the statist line.
Well, obviously it would have to be after the Wolverine Revolution.
It seems to me that if the Powers That Be want to keep offenders behind bars longer, they have a simple mechanism for doing so: legislation. Well, that, and getting judges to impose the longer sentences at the time of conviction.
Me, I’m in favor of (re)making some of the most heinous crimes capitol offenses. I see no reason why violent rape ought not to be punishable by hanging.
If holding someone in custody under a law that didn’t exist when he committed the act for which he was brought to the attention of the authorities isn’t ex post facto law (with perhaps a side order of Attainder), I don’t know what is.
The reason why the Constitution prohibits bills of attainder and ex post facto law is that it is impossible for a law to have a deterrent effect on bad behavior if the person contemplating committing that behavior cannot possibly be aware of the law since it doesn’t exist yet. Such punishment is the very hallmark of a tyrrany.
I’m not a lawyer, I don’t play one on TV, and I didn’t stay at a Holiday Inn Express last night, but it seems to me if a person is convicted of a crime, and serves their sentence, how can anyone justify deciding that they can keep him (or her) locked up longer, because they MIGHT commit another crime later? It sound like it is a stretch for the legality of such a law; it certainly is morally offense to me. You do the crime, you do the time. When the time is up, you’re free to go.
(Now, if I catch said person near my wife or nieces, they won’t find the remains. I got 5 dogs to feed, you know.)
(Now, if I catch said person near my wife or nieces, they won’t find the remains. I got 5 dogs to feed, you know.)
If there’s one thing I’ve learned from growing up in the Land of 10,000 Lakes, it’s that you always, always fill the ribcage with stones before you dump it over the transom.
Thanks, Squid. That’s a helpful hint. The Charles River is might muddy, but that hides things for only so long.
Be on the lookout for an escaped “y”. That was suppose to be “mighty”. Looks like I had equal problems with comment # 9, too.
Agile and Squid, there’s always the “Fried Green Tomatoes” solution.
It seems to me that going forward, the legislatures of every state should modify the statutes for certain sex crimes to indicate that civil commitment for life is a possibility at the end of the served sentence. Which still leaves the problem of what to do with those sex offenders who are serving their time now.
I’m thinking that “One strike, and you’re out” is the appropriate sentence for sexual crimes of a more hideous/violent nature. Death, if a child was involved.
Roman Law had an answer for rapine: emasculation. Recidivism was low.
I am afraid the majoriy’s broad interpretation of the “necessary and proper” clause is not a good sign for those of us who want the court to strike down the healthcare individual mandate as ultra vires.
[…] Constitutionally Dangerous […]